Duke Law students explore the human cost of mountaintop removal mining

October 2, 2009Duke Law News

Oct. 2, 2009 — Duke Law School’s Environmental Law and Policy Clinic has filed a friend of the court brief with the U.S. Supreme Court, urging it to look at the human cost of mountaintop removal mining in the Southern Appalachian Mountains.

On Sept. 28, the clinic filed a brief to support the certiorari request of the Huntington-based Ohio Valley Environmental Coalition (OVEC) in its suit against the U.S. Army Corps of Engineers (the Corps). OVEC is asking the high court to review the Corps’ decision, enjoined in district court but upheld by the U.S. Court of Appeals for the Fourth Circuit, to permit coal companies to dispose of waste from mountaintop removal coal mining operations into West Virginia watersheds; the suit alleges the Corps failed to follow Clean Water Act requirements.

The clinic represents the West Virginia Council of Churches, a coalition of congregations of various denominations who assist with disaster relief in the state and who, according to the brief, “have witnessed firsthand the devastating impacts” of mountaintop removal mining. The Council of Churches asked the clinic to illustrate to the Court how the health and welfare of their communities and congregants have been affected by the mining practice, explained Supervising Attorney Michelle Nowlin. Flash floods, landslides, well contamination, and other calamities have occurred in areas where the tops of mountains are removed to access coal within, with the waste water, coal, and rock stored in sediment ponds. The clinic also was tasked with showing how this kind of mining adversely affects local communities’ values and culture.

Third-year law students Jonathan Skinner and Laura Pisoni took the lead on crafting the brief, under the supervision of Nowlin and Ryke Longest, director of the clinic. They grounded their legal arguments in the National Environmental Law and Policy Act (NEPA) and the Clean Water Act and their respective regulations, supporting the District Court’s decision in the proceedings below.

“The laws and regulations require the Corps to take a ‘hard look’ at both the human and environmental impacts of this practice,” said Pisoni, who is pursuing an MEM through Duke’s Nicholas School of the Environment as well as her JD.

The “human impacts” include looking at the practice’s effect on aesthetic, recreational, and historical values, she noted. “In passing these statutes and promulgating these regulations, Congress and the agencies were asking, ‘What does it mean to have a human impact?’ They recognized that it wasn’t just a health impact, even though mountaintop removal mining is considered to have serious health impacts. But the meaning extends beyond that: If it destroys the culture or it destroys the aesthetic values the community holds dear, then that is a negative human impact as well.”

The Corps failed to take the “hard look” required at the cumulative effects of the mining practice before issuing permits, said Skinner, who is a JD/LLM candidate. “We don’t really know what the full, long-term effects are because the Corps didn’t do the studies. All we’re asking for them to do is do the studies and tell the public how this type of mining actually affects the communities.”

Much of their research took Skinner and Pisoni out of the law library in search of oral histories — including some compiled by the Council of Churches — and journalistic works that describe the economic and health effects of the mining practices in question.

Skinner said he found particularly compelling a recent New York Times interview with a mother who no longer lets her children take baths or even play in the sprinkler because she fears contaminants in the well-water will leach into their skin. Economic studies in the region indicate that mining communities suffer economically from the sheer speed of the mountaintop removal process, he added. “Eighty miners can extract in just a few months the coal that would have taken 800 miners several years.”

Pisoni and Skinner also pored over folklore, songs, and poems to find depictions of Appalachian culture and values — fierce self-reliance and independence and connection to nature that is under threat from contamination of streams and even the disappearance of mountaintops.

Appalachian poets — “among the quintessential American naturalist poets,” according to Pisoni —yielded a trove of material, she said. “They talk poignantly about the exact things we were talking about, such as the sense of place, the sense you have when you see the place you love destroyed, what it is about the place that’s so important to you.” Many of the works acknowledged the importance of coal and the mining industry to the state but simply opposed the practice of blowing the tops off of mountains, she noted.

A California native who admits having known little about Appalachian culture prior to starting work on the brief, Skinner said the project taught him how to “connect to a community.” Finding a way to take those stories and frame them in a way that will assist the Court in making its decision on the case was both challenging and highly educational, he observed. “Hopefully it will at least compel the Court to take the case and give them an opportunity later to actually be heard — and require the Army Corps or the [Environmental Protection Agency] to consider the way these permits impact these communities, especially in this region where they have such a strong attachment to these mountains.”

“Working on this amicus brief has helped our students learn valuable lessons about access to justice and professionalism,” said Longest. “By urging the Supreme Court to review the Fourth Circuit’s decision, their work has illumined the debate on one of the seminal issues in this region.”

“Jonathan and Laura did fine work with this brief,” observed Nowlin. “They were diligent and focused and worked around the clock to learn the issues and write the brief during the first five weeks of classes. It was challenging at times, but the students learned so much more than how to write a brief. They also learned how to bridge competing interests, express the common meaning of a dry legal question, pitch a compelling story, provide access to the justice system, and, of course, wield an editor’s razor. There’s no better teacher than experience, and this was a profoundly rewarding one.”